Mark Kleiman Concedes Obama Has the Power To Reclassify Marijuana but Claims It's Ignorant to Say So

On Friday I noted that, contrary to what President Obama said in his recent CNN interview, the executive branch does have the power to reclassify marijuana under the Controlled Substances Act (CSA). For some reason, that observation irked UCLA drug policy expert Mark Kleiman, who claims (rather inconsistently) that I am 1) ignorant of the facts, 2) willfully blind to the facts because they clash with my libertarian ideology, and 3) motivated to criticize Obama by financial gain rather than sincere conviction:

The discussion of "rescheduling" marijuana is confused because most of the people engaged in it don't know how the law works.

Jacob Sullum, always willing to let his ignorance be the measure of other people's knowledge, utterly unwilling to let mere facts get in the way of libertarian ideology, and eager to please his paymasters by slagging a Democratic President, illustrates my point in his response to the latest CNN Obama interview.

A few paragraphs down, Kleiman concedes that "yes, authority to reschedule cannabis lies with the Administration." So what I said was correct yet somehow also ignorant and unfactual.

Even if I had misrepresented the administration's authority under the Controlled Substances Act (which Kleiman admits I did not), in what sense would that illustrate my libertarian bias? No matter who is charged with saying which drugs people are not allowed to have, the CSA is not a libertarian statute by any stretch of the imagination.

But Kleiman says I am not really motivated by libertarianism anyway. Rather, I am in it for the money, "eager to please [my] paymasters by slagging a Democratic President." Exactly who are these "paymasters," and why do they hate Democrats in particular? Kleiman does not say, possibly because this is a generic ad hominem attack he uses against people he perceives as political opponents, whether or not he has any facts to back it up.

In any case, anyone who is even vaguely familar with my work knows it is absurd to suggest that I criticize Democrats while giving Republicans a pass. Two days before I criticized Obama for speaking as if he were powerless to reschedule marijuana, I defended him against an attack by a Republican senator who objected to his statement that marijuana is safer than alcohol. A couple of weeks before that, I took issue with another Republican senator who criticized Obama for allowing legalization to proceed in Colorado and Washington by refraining from arresting and prosecuting state-licensed marijuana suppliers.

More generally, while Obama is the president I have been "slagging" most since January 2009, I was never shy about slagging his Republican predecessor. Last week I linked to some of that criticism while arguing that Republicans who fault Obama for abusing executive power, if they want to be taken seriously, should not downplay similar sins committed by Republican presidents. In case it still is not clear, I am not now, nor have I ever been, a member of the Republican Party. But in Kleiman's mind, I am a partisan interested only in picking apart members of the other team.

Kleiman also suggests that if I really understood how the law works, I would have criticized the administration for impeding research by maintaining a monopoly on production of marijuana used in studies. Yeah, why have I never talked about that?

The one valid point Kleiman makes is that placing marijuana on a lower schedule would not automatically make it available by prescription, since any cannabis preparation would still have to be approved by the Food and Drug Administration. But the practical impact of reclassifying marijuana is distinct from the question of whether it meets the criteria for Schedule I and whether the Obama administration has the power to move it, which is what I was talking about in the post that set Kleiman off, as people who actually read it may be surprised to learn.

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79 responses to “Mark Kleiman Concedes Obama Has the Power To Reclassify Marijuana but Claims It's Ignorant to Say So”

As I recall, the scheduling of a substance has two effects. (1) it allows for prescription of the substance at Schedule II or higher, but (2) it lowers the penalties for possession when a substance is moved from Schedule I to Schedule II or higher. That second effect would be immediate and beneficial.

Cannabis has special penalty provisions that are much less than for other C-1 substances. It’d have to be rescheduled as at least C-4 for the penalties to lessen. And anyone can already legally prescribe cannabis to anyone else; do you know what “prescribe” means?

It can’t be approved by the FDA so effectively Obama does not have the power to reschedule it? That doesn’t even count as pedantry because it’s not true. The executive has the power to reschedule marijuana, which is counter to what Obama claimed and exactly what Sullum called him on. What happens next with the FDA and testing for prescription use is irrelevant.

Update Tom Angell’s feelings are hurt because I was mean to poor widdle Jacob Sullum. And he insists that I mention that, if marijuana were downscheduled to Schedule III rather than Schedule II (a scheduling decision that wouldn’t make much sense, given that something more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time), marijuana sellers would be able to deduct their business expenses in calculating their federal income taxes. Since that trivial impact on the cannabis problem isn’t the same as “identically zero impact,” Angell demands that I retract.

OK. Rescheduling to the appropriate schedule would have identically zero impact, but excessive downscheduling could somewhat increase the after-tax incomes of marijuana retailers and perhaps lead to slightly lower retail cannabis prices in state-legal stores.

Does Kleiman, acting like this, persuade anyone who doesn’t already agree with him?

He is a noble defender of The People against those who ruthlessly prey on them for profit, and he does so by putting their lackeys in their place. Is that how he justifies being a Grade A shithead to himself?

Mean? No, he was an obtuse asshole. He pitifully believed everything he said was true, especially the contradictory bits because those are the points that differentiate his opinion from those of a lackey to profiteers.

“If marijuana were downscheduled to Schedule III rather than Schedule II (a scheduling decision that wouldn’t make much sense, given that something more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time)…”.

Kleiman has a point, there. Most people don’t know this, but the diagnostic criteria were written by the hand of God on stone tablets and handed, personally, to Barack Obama when he was up on Mount Sinai. They’re inviolable.

“Marihuana,” by contrast, is placed by name in Schedule I. That placement tracks its treatment in the international conventions governing drug policy.

Obama’s hands are tied by an international treaty signed by JFK implemented by Nixon.

if marijuana were downscheduled to Schedule III rather than Schedule II (a scheduling decision that wouldn’t make much sense, given that something more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time)

There’s your “smart” progressive arguments against marijuana legalization. “The United Nations says NO!” “What about public health? There are over 2 million marijuana addicts!

I am not sure what justification is going to be used to take away more freedoms: commerce clause or public health? Diagnostic criteria for cannabis abuse or dependency? I’m sure those criteria are the same ones that have helped increase the number of binge drinkers in the country. So many puritans in the country trying run the lives of others.

Obama’s hands are tied by an international treaty signed by JFK implemented by Nixon.

Hey, remember when Ted Cruz was attacked by progressives for arguing that international treaties shouldn’t be used to take away sovereignty from American voters? They called him ‘paranoid’ and basically argued that this would never happen.

Now a progressive is defending Obama by saying that he can’t change a sovereign American law because of an international convention on drugs. Man, what a paranoid asshole that Ted Cruz was!

The right will attack Obama’s attempt at rescheduling as an “unconstitutional power grab” that will lead to socialism and gays dancing in the streets wearing nothing but tight shorts. IOW, there is a political component to this so it won’t happen until after the midterms.

Obama is pretty much a triangulating moderate (lacks principle you might say).

He supported DOMA and DADT until he didn’t. He went for market-based reform in health care instead of single-payer. He is willing to cut taxes before raising other taxes. He is cutting the deficit ahead of schedule. He chooses a lot of GOPers for his cabinet (Gates, Hagle, LaHood).

Even though Obama cannot take pot completely out of the CSA (and I don’t think he can), he can reschedule it all the way down to Schedule V:

Schedule V substances are those that have the following findings:

A.The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV B.The drug or other substance has a currently accepted medical use in treatment in the United States C.Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.

Which sounds about right. It does have a low potential for “abuse”, it does have a currently accepted medical use in the US (tens of thousands of “prescriptions” are written for medpot users every year), and even where abuse occurs, it has no physical dependence and limited psych dependence.

Schedule V penalties? Well, I think it would still, technically, be a prescription drug. According to the DEA, Schedule V penalties are:

First Offense: Not more than 1 yr. Fine not more than $100,000 if an individual, $250,000 if not an individual.

Second Offense: Not more than 4 yrs. Fine not more than $200,000 if an individual, $500,000 if not an individual.

Rescheduling is not even decriminalization at the federal level. But, considering it would put pot on the same legal footing as Lyrica and other lifetime lifestyle type drugs, it would be a big step in the right direction.

No, the administration can remove a substance completely from the control schedules, as was done in stages with loperamide (which Sasha Shulgin chronicled the stages of thoroughly), which you may know as Imodium. The DEA can also exempt a particular preparation of a controlled substance from controls because it has had its “potential for abuse” reduced or eliminated due to its formulation, packaging, or conditions of marketing.

The one valid point Kleiman makes is that placing marijuana on a lower schedule would not automatically make it available by precription, since any cannabis preparation would still have to be approved by the Food and Drug Administration.

I could have sworn that the FDA, like the DEA, is an agency of the executive branch that takes orders from the President. This is no objection, in other words, at all.

I, for one, would be interested to read about these “international conventions” that supposedly tie the President’s hands. Are they actually treaties ratified by Congress? If not, they have no legal effect on our domestic laws. If so, would they be violated by reclassing pot off of Schedule 1? Again, if so, does this effectively strip the President of authority to do so?

Yes, they are treaties ratified by the Senate. And no, they would not be violated by changing pot’s control schedule. They are supposed to limit the substances in question to medical, veterinary, or research use.

Usually, academics are reluctant to engage with partisans because academics have academic standards to live up to in their public comments, but partisans can say whatever they want for their cause with impunity.

Sullum not being a Republican is even more beside the point, here. I don’t remember seeing an academic go after an alleged partisan like that before. It’s as if the academic were the one with no standards! Kleiman’s behavior here is an embarrassment to the UCLA School of Public Affairs.

It isn’t just that Kleiman is wrong about Sullum, either. I think Kleiman’s behavior would be embarrassing even if Sullum were a Republican partisan. The Dean of the School of Public Affairs should take a look at this before Kleiman becomes an even greater source of embarrassment.

I remember David Suzuki, once, talking about having crossed the line from academic to activist. Former academics really should renounce the title once they cross that line. Otherwise, it’s political advocacy masquerading as scholarship, and with so much of that going around, it’s no wonder so many average people have become so dubious of what academics say today on a wide range of topics.

If Kleiman doesn’t want to be an academic anymore, there isn’t anything wrong with that, but if he’s going to keep working for UCLA and calling himself an academic, he shouldn’t be surprised if people expect him to abide by academic standards.

“Mark Kleiman, who claims I am 1) ignorant of the facts, 2) ) willfully blind to the facts …”

How can you be both ignorant, AND ‘willfully blind’? this seems to me an ‘either/or’ situation. You can’t have both.

The third one…. the “he’s being PAID to argue these awful things! = ergo, you cant trust him!” – Whats that called again? Its a common fallacy – where you claim your opponent *doesn’t even really believe what they’re saying, but they’re being PAID to do so…” – the implication that if you are paid, then you aren’t really speaking *your own* mind, but rather only acting as a puppet for shadowy interests in the background. (fallacy of agency? – meh)

[* The idea that anyone might be paid because they ALREADY DO believe these things, and express themselves extremely well, such that they subsequently become hired by groups supporting said causes… No, that idea is completely LUDICROUS!

Calling other people “paid shills” seems to be a knee-jerk defense mechanism of the Left – they cry, “MONEY!!! MONEY BAD!!” as though the only way to earn an honest dollar in the free market is to have Tenure at some shitty public school. It gets even stupider when you actually follow that logic to the core, which is…. those EVIL CORPORTISTS WHO WANT TO… Legalize marijuana… because…… profit? derp.

No, anyone recall what this ‘fallacy’ of ‘attributing an opponents’ argument to the influence of a third party’ is?

Reading the comments, it appears that a number of the people debating this are ‘public health’-bureaucrat/experts, and the most disturbing thing for some of them is the idea that the broader infrastructure of ‘classification and regulation’ be undermined in any way…

… Kleiman seems to be fixed on this idea that the HORROR of things like Tobacco, Alcohol and Coffee is that they’ve been *latched onto* by private interests, and due to their ‘lobbying power’ continue to increase their Market Power to the point where Agencies no longer have any ability to directly curtail the consumption of these items.

Or, shorter = he DESPISES the idea of ‘markets’ for anything, most specifically things that ‘may have some public health effect’.

He repeatedly cites ‘use’ statistics like ‘abuse’ statistics… such that the very numbers showing widespread use of MJ are exactly what justify *its restriction*. If it were less ‘illegal’, then how would public officials be able to CONTROL IT!?

That’s really what this guy hates= anyone *advocating* a market-solution as opposed to CONTROL by academic elites. Its a turf-battle.

Epi has pointed out a million times = INTENTIONS are all that matter for many progs, so Step 1 in many arguments = assail the opponent’s intentions: they are likely something awful like CORPORATE PROFITS… not “freedom”*

(you’re supposed to groan cynically when anyone says that word)

They seem to love to put ‘freedom’ in scare-quotes because it is a perfect symbolic way to show the audience that you aren’t falling for this ‘superficial appeal to human rights and freedom’ stuff because, duh, Liberals already OWN that stuff. Even when they’re advocating keeping certain drugs *illegal*, its because they’re protecting the ‘freedoms’ of millions of people from being exposed to the deleterious health-effects of these corporate-marketed poisons…or something.

They do get nastier and nastier about it though. When they’re in power and defending their territory, they become like rabid mongooses (mongeese?) lashing out at the throats of anything gesturing in their general direction.

“a scheduling decision that wouldn’t make much sense, given that something more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time”

Sure. Nobody who uses approved, higher-scheduled, legal drugs approved by the FDA ever becomes addicted to them! There is not a single man or woman in the USA who meets the diagnostic criteria for OxyContin abuse or dependence at any one time, is there?

Jacob Sullum, always willing to let his ignorance be the measure of other people’s knowledge, utterly unwilling to let mere facts get in the way of libertarian ideology, and eager to please his paymasters by slagging a Democratic President, illustrates my point in his response to the latest CNN Obama interview.

I’m amazed at how progressives don’t seem capable of making a rational argument without hurling insults.

“Jacob Sullum, always willing to let his ignorance be the measure of other people’s knowledge, utterly unwilling to let mere facts get in the way of libertarian ideology, and eager to please his paymasters by slagging a Democratic President”

Plus, I stand in awe of this display of academic dispassion & objective scholarship. Perhaps one of his students could start off a paper by writing:

“Professor Kleiman, always willing to let his ignorance be the measure of other people’s knowledge, utterly unwilling to let mere facts get in the way of liberal ideology, and eager to please his paymasters by slagging a voice of dissent.”

I’m sure the good professor would award the student an A for such an engaging argument.

Actually, I am an academic (humanities) and it’s comments like Kleiman’s that make me embarrassed to be in academia. If people like Kleiman conducted research in the same way they comment on politics, they’d be laughed out of the profession.

Jacob Sullum mark Kleiman, always willing to let his ignorance be the measure of other people’s knowledge, utterly unwilling to let mere facts get in the way of libertarian authoritarian ideology, and eager to please his paymasters by slagging a Democratic President libertarian commentator, illustrates my point in his response to the latest CNN Obama interview jacob Sullum article.

eager to criticize Democrats because it is in my financial interest to do so

In fairness if reason did not put Dem’s feet under the fire over their complete unwillingness to implement changes that the left and libertarians are supposed to agree on I probably would not have donated last drive.